Wednesday, April 22, 2015

Legal Opinion Bleg....

Do we have any legal professionals in the audience? Preferably licensed in Oregon?

I have a question for any legal minds out there, and would love to figure this problem out. I'm trying to determine the answer to this question:
Is it legal or illegal for a state employee to carry a licensed, concealed firearm into state office buildings?
For the purposes of this bleg, I'm strictly concerned with the legalities. Whether it's a "condition of employment" is another matter for another time.

Please don't be shy; all opinions are welcome, and I won't consider any of them actual "legal advice" — unless the commenter is an Oregon-licensed attorney, and positively affirms that his/her comment can be taken as a legal opinion. I'm mostly just group-testing my logic.

[ADDED:] I should note this is all my own cursory research, and although I believe the conclusions are valid — or at least call into question the "conventional knowledge" described herein — I feel a disclaimer is necessary, so here it is: I am not a lawyer or judge, and this should not in any way be taken as legal advice. In fact, in this post I am asking if anyone can offer a legal opinion or any law/statute/rule/policy or case law I may have missed. Thanks. [/ADDED]

Details and analysis below the fold.

Still here? Great! First, let me provide some background. I've always been told that carrying a firearm in a state building is illegal, even with a CHL (Concealed Handgun License; other states call it a CCW, CHP, CWP, LTC, etc.). Not only that, but the "law", as explained, disarms state employees not only in their buildings, but also in adjacent parking lots and structures, if owned/leased by the state (i.e. you can't even leave it in your car), thus disarming the employees for their entire trip.

However, upon asking, nobody could point to any such law. Naturally, I started to wonder if it is illegal in fact, or if the powers-that-be just don't want firearms present.

So without further ado, let me present my "case" so far:

Item #1: Department of Administrative Services Policy Manual, #125-6-321 (PDF warning)

This is the closest thing I could find to any "law" against carrying into a state office building. Before quoting, I should note that DAS is responsible for purchasing, renting, leasing, or otherwise acquiring all state office buildings and properties. Their authority is state-wide; if it's a state-owned or -leased building, or used for state business, it falls under DAS authority.

The policy itself is pretty clear, reading (in relevant part):
I. No firearm or other weapon of any kind, including any explosives, shall be permitted at any time on the premise of any state office building owned or leased by the Department. Except that, such firearms or other weapons are permitted when in the possession of or stored for official public business authorized by statute for peace officers or for members of any state or national military organization.
Pretty clear, right? But look at the "Purpose" statement:
Pursuant to OAR 125-75-015, to establish policies of the Department regarding the prohibition of firearms, alcoholic beverages and illegal drugs on the premises of state office buildings under the control of the Department. [emphasis added]
The underlined section indicates that DAS policy #125-6-321 derives its authority from Oregon Administrative Rule (OAR) #125-75-015. Let's go see what that says....

Item #2: Oregon Administrative Rule #125-75-015 (link to Secretary of State's web page on OAR 125-75; scroll down or Ctrl+F to get to rule #015)

So here we have the OAR from which DAS derives its policy. What's it say (in relevant part)?
(1)(a) Possession or use of firearms or other weapons of any kind, including any explosives, air guns, or slingshots on the grounds, parking areas (structures, facilities, lots) and premises of buildings under Department control is governed by federal and state laws.

(b) The provisions of this section do not apply to firearms in the possession of or stored for official public business authorized by statute for peace officers or for members of any state or national military organization.
[emphasis added]
Note the underlined section: "governed by federal and state laws". I'm sure you can guess where my next step down this rabbit hole led.

Item #3: 18 U.S. Code § 930 - Possession of firearms and dangerous weapons in Federal facilities

This is the only federal law pertaining to firearms in public facilities that The Googles could locate. Here's the first relevant bit:
(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.
Again, pretty clear, but note that it only applies to "Federal facilities". Luckily, that definition is included in the same statute:
(g) As used in this section:
(1) The term “Federal facility” means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.
Based on this definition, the statute only applies to state-owned or -leased buildings if the Federal Government owns or leases part of it and Federal employees regularly perform their official duties there, and even then only applies to that part of the building the Federal Government owns or leases.

In other words, most state buildings do not fall under this statute.

So that's the federal law. What about the state law?

Item #4: 166.360 Definitions for ORS 166.360 to 166.380. (links to the full Chapter 166; you'll have to scroll down or Ctrl+F to get to #360 — sorry, guys and gals)

First, let's cover the relevant definitions we're dealing with. ORS 166.360 defines "capitol building" and "court facility" thusly:
(1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.
(2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.
I have to include the definition to "capitol building" and "court facility" because the definition of "public building" includes them:
(4) “Public building” means a hospital, a capitol building, a public or private school, as defined in ORS 339.315, a college or university, a city hall or the residence of any state official elected by the state at large, and the grounds adjacent to each such building. The term also includes that portion of any other building occupied by an agency of the state or a municipal corporation, as defined in ORS 297.405, other than a court facility.
This would certainly cover state office buildings.

Now that we have the definitions down, what about the actual law?

Item #5: Oregon Revised Statutes (ORS) 166.370 Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school. (same page as Item #4)

So what does this say?
(1) Any person who intentionally possesses a loaded or unloaded firearm or any other instrument used as a dangerous weapon, while in or on a public building, shall upon conviction be guilty of a Class C felony.
Class C felony? Ouch!

But wait! Didn't the title say something about "exceptions"? Why, yes, it did!
(3) Subsection (1) of this section does not apply to:
(d) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun. […]
[sections not relevant to this matter removed]
(ORS 166.291 and 166.292 are the statutes pertaining to the issuing of CHLs, and are not specifically relevant; we're assuming they have already been met and a CHL issued.)

So by state law, a CHL holder cannot be barred from carrying a concealed firearm into a public building that's not a court facility.


Given all the above, here's my tentative conclusion, based on a textual reading of the relevant laws: DAS's policy banning firearms on and in state office buildings was established pursuant to an Oregon Administrative Rule which says that state office buildings follow federal and state laws pertaining to firearms, and neither federal nor state law bans CHL holders from carrying in state office buildings. State law, in fact, specifically exempts CHL holders from the prohibition against carrying in public non-court-facility buildings. Therefore, the DAS policy in question has no legal justification anywhere — not in United States Code, not in Oregon Revised Statutes, and not in Oregon Administrative Rules.

So here's the question restated: Is it legal for a state employee to carry a licensed, concealed firearm into state office buildings? Or, is the DAS policy legally binding, despite having no basis in actual law? As I said above, I'm concerned solely with the legalities, not whether an employee could be fired if discovered carrying.

All comments and opinions welcome. And stay safe.

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